Makah Indian Tribe v. Quileute Indian Tribe, No. 15-35824 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed in part the district court's judgment concerning the fishing rights of the Quileute Indian Tribe and the Quinault Indian Nation under the Treaty of Olympia. The panel held that the district court did not clearly err in its finding that the Quileute and Quinault understood that the Treaty's preservation of the "right of taking fish" included whales and seals. The panel explained that the district court's extensive factual findings supported its ultimate conclusion that "fish" as used in the Treaty of Olympia encompassed sea mammals and evidence of customary harvest of whales and seals at and before treaty time may be the basis for the determination of a tribe's usual and accustomed fishing grounds. However, the panel reversed the district court's delineation of the fishing boundaries because the lines drawn far exceed the district court's underlying factual findings.
Court Description: Fishing Rights The panel affirmed in part, and reversed in part, the district court’s judgment concerning the fishing rights in Western Washington of the Quileute Indian Tribe and the Quinault Indian Nation under the Treaty of Olympia. The Treaty of Olympia protects the tribes’ “right of taking fish at all usual and accustomed grounds and stations” (“U & A”). 4 MAKAH INDIAN TRIBE V. QUILEUTE INDIAN TRIBE The panel held that evidence of whaling and sealing was appropriate to establish U & A under the Treaty of Olympia. The panel also held that the Treaty of Olympia reserved the Quileute and Quinault’s right to take whales and seals. The panel further held that the district court properly looked to the tribes’ evidence of taking whales and seals to establish the U & A for the Quileute and Quinault, and did not err in its interpretation of the Treaty of Olympia. The panel held that the Quileute and Quinault adequately identified the “grounds and stations” where they engaged in whaling and sealing, and rejected the State of Washington’s suggestion that the tribes must identify specific locations. The panel reversed the district court’s order imposing longitudinal boundaries where the tribes could fish because they did not match the district court’s U & A determinations for the Quileute and Quinault. The panel held that the law does not dictate any particular approach or remedy that the court should institute, and directed the district court on remand to draw boundaries that are fair and consistent with the court’s findings.
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